Mitigation of Impacts to Wetlands

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 777

[Docket No. FHWA-97-2514]

RIN 2125-AD78

Mitigation of Impacts to Wetlands

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Supplemental notice of proposed rulemaking (SNPRM); request for

comments.

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SUMMARY: The FHWA is supplementing its June 17, 1996, notice of

proposed rulemaking (NPRM) entitled, ``Mitigation of Impacts to

Wetlands.'' This SNPRM would clarify the scope of the FHWA's wetlands

regulations by specifying that they apply to all projects funded

pursuant to the provisions of title 23, United States Code (Title 23).

This rulemaking would also make a technical amendment to the text of

the NPRM.

DATES: Comments must be received on or before August 18, 1997.

ADDRESSES: Submit written, signed comments to the docket number that

appears in the heading of this document to the Docket Clerk, U.S. DOT

Dockets, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-

0001. All comments received will be available for examination at the

above address between 10 a.m. and 5 p.m., e.t., Monday through Friday,

except Federal holidays. Those persons or organizations who desire

notification of receipt of comments must include a self-addressed,

stamped envelope or postcard.

FOR FURTHER INFORMATION CONTACT: Mr. Paul Garrett, Office of

Environment and Planning, HEP-42, (202) 366-9173, or Mr. Brett Gainer,

Office of the Chief Counsel, HCC-31, (202) 366-1372, Federal Highway

Administration, 400 Seventh Street, SW., Washington, DC. 20590. Office

hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday,

except Federal holidays.

SUPPLEMENTARY INFORMATION: In an NPRM published on June 17, 1996 (61 FR

30553), the FHWA proposed to amend 23 CFR part 777, ``Mitigation of

Impacts to Privately-owned Wetlands,'' in order to update the current,

out-moded regulations in light of changes brought about by the

Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA). The

ISTEA significantly altered the range and timing of alternatives

eligible for Federal-aid participation for mitigation of wetland

impacts due to Federal-aid highway projects. Accordingly, the June 17,

1996, NPRM would revise the current regulations to conform to the

ISTEA's requirements, thereby providing more flexibility to State

highway agencies in determining eligibility of mitigation alternatives

for Federal participation. This proposal would also broaden the scope

of the current regulation to encompass all wetlands mitigation projects

eligible for Federal participation, not just those involving privately

owned wetlands.

In the months since the NPRM was published, however, the FHWA has

determined that certain language in the proposed regulation, carried

over from the original rulemaking published in 1980, could be

interpreted in an unnecessarily restrictive manner. Part 777, as now

written, states that it applies to ``the evaluation and mitigation of

adverse environmental impacts to privately owned wetlands caused by new

construction of Federal-aid highway projects.'' 23 CFR 777.1. The NPRM

would retain this language, with the exception of the words ``privately

owned.'' The FHWA believes this provision is unnecessarily restrictive,

because under current law Federal-aid funds may be used to improve or

restore wetlands affected by past Federal-aid highway projects, even

when no current Federal-aid project is taking place in the vicinity.

Four provisions of Title 23 sanction such ``historic wetlands''

restoration projects. First, both the National Highway System and

Surface Transportation Programs, created by ISTEA, allow states to use

Federal-aid funds for wetlands mitigation activities. 23 U.S.C.

103(i)(13) and 133(b)(11). These provisions are identically worded, and

allow the expenditure of Federal-aid highway funds towards efforts to

conserve, restore, enhance, and create wetlands. Both provisions state

that ``[c]ontributions to such mitigation efforts may take place

concurrent with or in advance of project construction.'' The FHWA

believes this phrase may be fairly interpreted as permissive, rather

than restrictive and, therefore, States are permitted by these two

provisions to use Federal-aid funds for the stated purposes concurrent

with or in advance of project construction. Nothing in the language of

sections 103(i)(13) or 133(e)(11) forbids states from doing so after a

project has been completed. No specific prohibition having been written

into these provisions, the FHWA does not believe one should be implied.

Two other provisions of Title 23, when read together, also provide

a basis for funding so-called historic wetlands restoration projects.

The first is section 133(b)(1), which permits Surface Transportation

Program (STP) funds to be spent for ``mitigation of damage to wildlife,

habitat, and ecosystems caused by a transportation project funded under

this Title.'' Under section 101 of Title 23, the term ``project'' means

``an undertaking to construct a particular portion of a highway, or if

the context so implies, the particular portion of a highway so

constructed.'' This definition is broad enough to encompass not just

new or even recent projects, but any highway that has been constructed

using Title 23 funds.

A final category of funding for which historic wetlands projects

may be eligible is that available under the STP for transportation

enhancement activities (TEAs). 23 U.S.C. 133(e)(8). The definition of

TEAs (23 U.S.C. 101) does limit them to those related to particular

``projects'' (as defined in section101), but does not specify any

particular time frame in which they must take place. Historic wetlands

projects could qualify for STP funds if legitimately tied to one of the

categories of TEAs set forth in the definition, such as scenic

beautification or mitigation of water pollution due to highway runoff.

With all this in mind, the FHWA has decided to issue this SNPRM,

which would further amend Part 777 by revising Sec. 777.1 to read: ``To

provide policy and procedures for evaluation and mitigation of adverse

environmental impacts to wetlands resulting from projects funded

pursuant to the provisions of title 23, United States Code.'' The FHWA

invites comments on this new proposal.

This SNPRM also makes a technical amendment to the text of the June

17, 1996, NPRM. Although the NPRM would expand the application of part

777 to the mitigation of environmental impacts to both private and

publicly owned wetlands, the regulatory text of the NPRM inadvertently

retained the heading, ``Mitigation of Impacts to Privately Owned

Wetlands.'' This SNPRM would correct that oversight by removing the

words ``Privately Owned'' from the heading.

Rulemaking Analyses and Notices

All comments received before the close of business on the comment

closing date indicated above will be considered and will be available

for examination in the docket at the above address. Comments received

after the comment closing date will be filed in the docket and will be

considered to the extent practicable, but the FHWA may issue a final

rule at any time after the

[[Page 33048]]

close of the comment period. In addition to late comments, the FHWA

will also continue to file in the docket relevant information that

becomes available after the comment closing date, and interested

persons should continue to examine the docket for new material.

Executive Order 12866 (Regulatory Planning and Review and DOT

Regulatory Policies and Procedures)

The FHWA has considered the impact of this document and has

determined that it is neither a significant rulemaking action within

the meaning of Executive Order 12866 nor a significant rulemaking under

the regulatory policies and procedures of the Department of

Transportation. This rulemaking would supplement an NPRM proposing to

amend FHWA regulations regarding mitigation of impacts to privately

owned wetlands. These regulations have become outdated because of

provisions in sections 1006 and 1007 of the ISTEA, which authorize

greater flexibility for Federal participation in mitigating impacts to

wetlands. These amendments have been codified at 23 U.S.C. 103 and 133.

This SNPRM would not cause any significant changes to the amount of

funding available to the States under the STP or NHS programs or add to

the process by which States receive funding. The provisions of this

proposed rulemaking would not require the additional expenditure of

Federal-aid or State highway funds. Instead, this SNPRM would merely

clarify the scope of the FHWA's wetlands regulations by specifying that

they apply to all projects funded pursuant to title 23, United States

Code (Title 23). Thus, it is anticipated that the economic impact of

this rulemaking would be minimal. In addition, it would not create a

serious inconsistency with any other agency's action or materially

alter the budgetary impact of any entitlements, grants, user fees, or

loan programs; nor will amendment of this regulation raise any novel

legal or policy issues. Therefore, a full regulatory evaluation is not

required.

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-

612), the FHWA has evaluated the effects of this SNPRM on small

entities and has determined it would not have a significant economic

impact on a substantial number of small entities. Supplementing the

FHWA's June 17, 1996, NPRM in this manner would not affect the amount

of funding available to the States through the STP or NHS programs, or

the procedures used to select the States eligible to receive these

funds. Furthermore, States are not included in the definition of

``small entity'' set forth in 5 U.S.C. 601. For these reasons, and for

those set forth in the analysis of E.O. 12866, the FHWA hereby

certifies that this action will not have a significant economic impact

on a substantial number of small entities.

Executive Order 12612 (Federalism Assessment)

This action has been analyzed in accordance with the principles and

criteria contained in Executive Order 12612, and it has been determined

that this action does not raise sufficient federalism implications to

warrant the preparation of a federalism assessment. This SNPRM would

not preempt any State law or State regulation. No additional costs or

burdens would be imposed on the States as a result of this action, and

the States' ability to discharge traditional State governmental

functions would not be affected by this rulemaking.

Executive Order 12372

Catalog of Domestic Assistance Program Number 20.205, Highway

Planning and Construction. The regulations implementing Executive Order

12372 regarding intergovernmental consultation on Federal programs and

activities apply to this program.

Paperwork Reduction Act

This action does not create a collection of information requirement

for the purposes of the Paperwork Reduction Act of 1995, 44 U.S.C.

3501-3520.

National Environmental Policy Act

The FHWA has analyzed this rulemaking for the purposes of the

National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347).

This SNPRM would not, in and of itself, constitute a major Federal

action significantly affecting the quality of the human environment.

Instead, it would clarify the scope of the June 17, 1996, NPRM, which

is intended to increase the flexibility available to States when

deciding how to mitigate impacts to wetlands resulting from projects

funded pursuant to the provisions of title 23, United States Code. Such

impacts and appropriate mitigation measures would be evaluated pursuant

to NEPA on a project-by-project basis by the States and the FHWA.

Accordingly, promulgation of this SNPRM would not require the

preparation of an environmental impact statement.

Regulatory Identification Number

A regulation identification number (RIN) is assigned to each

regulatory action listed in the Unified Agenda of Federal Regulations.

The Regulatory Information Service Center publishes the Unified Agenda

in April and October of each year. The RIN contained in the heading of

this document can be used to cross reference this action with the

Unified Agenda.

List of Subjects in 23 CFR Part 777

Flood plains, Grant programs--transportation, Highways and roads,

Wetlands.

Issued on: June 9, 1997.

Jane Garvey,

Acting Administrator for the Federal Highway Administration.

In consideration of the foregoing, the FHWA proposes to amend part

777 of title 23, Code of Federal Regulations, as follows:

PART 777--MITIGATION OF IMPACTS TO WETLANDS

1. The authority citation for part 777 is revised to read as

follows:

Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 303; 23 U.S.C.

101(a), 103, 109(h), 133(b)(1), 133(b)(11), 133(d)(2), 138, 315;

E.O. 11990; DOT Order 5660.1A; 49 CFR 1.48(b).

2. The heading of part 777 is revised to read as set forth above

3. Section 777.1 is revised to read as follows:

Sec. 777.1 Purpose.

To provide policy and procedures for the evaluation and mitigation

of adverse environmental impacts to wetlands resulting from projects

funded pursuant to the provisions of title 23, United States Code.

[FR Doc. 97-15929 Filed 6-17-97; 8:45 am]

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